Albright, et al v Nash County

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavo red, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA11-1530 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 MARIE ALBRIGHT and MAURICE ALBRIGHT, as co-trustees on behalf of the Marie Albright Trust; JEAN BISSETTE; KEVIN BRIGHT; SANDRA BRIGHT; DAVID BYERLY; ELIZABETH BYERLY; DANIEL CANTU; NANCY CANTU; FAYE DANIEL; STEPHEN DANIEL; GEORGE DESANTO; MICHELINE DESANTO; VANISE HARDEE; DEBORAH HARDEE; JOHN LEPOSA; TAMMY LEPOSA; JOSEPH LYBRAND; AMY LYBRAND; DAVIS MILLER a/k/a THOMAS DAVIS MILLER; JEANEEN MILLER; ADA MORGAN; RAY MORGAN; JUDITH SCULL a/k/a JUDITH THOMPSON SCULL; DAVID SCULL; MELINDA MOSELEY a/k/a MELINDA SCHMITZ; RAYMOND SCHMITZ; GAIL SULLIVAN; LAWRENCE SULLIVAN a/k/a LARRY SULLIVAN; BERNARD WHITE; TONI WHITE; KATHY WILLIAMSON; THOMAS WILLIAMSON; ROGER PARKER a/k/a BILLY ROGER PARKER, Jr.; and the CITY OF WILSON, a North Carolina municipal corporation, Plaintiffs, v. NASH COUNTY, Defendant. Nash County No. 10 CVS 2141 -2Appeal by plaintiff from order entered 1 July 2011 by Judge W. Russell Duke, Jr., in Nash County Superior Court. Heard in the Court of Appeals 9 May 2012. Brough Law Firm, by Robert E. Hornik, Jr., for plaintiffappellant City of Wilson. Smith Moore Leatherwood LLP, by Thomas E. Terrell, Jr. and Elizabeth Brooks Scherer, and Battle, Winslow, Scott & Wiley, P.A., by G. Vincent Durham, Jr., for defendantappellee. HUNTER, Robert C., Judge. Plaintiff City of Wilson ( the City ) appeals from the trial court s order granting defendant Nash County s motion to dismiss the City and its claims after concluding the City lacked standing to maintain its claims against Nash County. In light of this Court s decision in Morgan v. Nash County, __ N.C. App. __, __, __ S.E.2d __, __ (No. COA11-1544) (Aug. 21, 2012), we dismiss this appeal as moot. Background The majority of the facts pertinent to this appeal are set forth in Morgan, __ N.C. App. at __, __ S.E.2d at __, filed contemporaneously with this decision, and only a portion of the facts will be repeated here. County Board of County On 1 November 2010, the Nash Commissioners ( the Board ) voted to -3rezone a 147-acre tract of land in Nash County ( the subject property ) from Rural Commercial and Residential districts, to a General Industrial zoning district. The subject property was then owned by Cecil and Bertine Williams who are not a party to the underlying action. On 19 November 2010, the City of Wilson joined thirty-three individual plaintiffs1 and filed the underlying action in Nash County Superior Court challenging the rezoning. Judge W. granting Russell the prejudice, Duke, County s the City Jr., Rule and entered 12(b)(1) all its an interlocutory motion claims. On 1 July 2011, dismissing, The trial order with court concluded the City failed to establish that it had standing to 1 The plaintiffs in the underlying action consist of: Marie Albright and Maurice Albright, as co-trustees on behalf of the Marie Albright Trust; Jean Bissette; Kevin Bright; Sandra Bright; David Byerly; Elizabeth Byerly; Daniel Cantu; Nancy Cantu; Faye Daniel; Stephen Daniel; George Desanto; Micheline Desanto; Vanise Hardee; Deborah Hardee; John Leposa; Tammy Leposa; Joseph Lybrand; Amy Lybrand; Davis Miller a/k/a Thomas Davis Miller; Jeaneen Miller; Ada Morgan; Ray Morgan; Judith Scull a/k/a Judith Thompson Scull; David Scull; Melinda Moseley a/k/a Melinda Schmitz; Raymond Schmitz; Gail Sullivan; Lawrence Sullivan a/k/a Larry Sullivan; Bernard White; Toni White; Kathy Williamson; Thomas Williamson; Roger Parker a/k/a Billy Roger Parker, Jr.; and the City of Wilson, a North Carolina municipal corporation (collectively plaintiffs ). -4maintain its challenge to the rezoning of the subject property. The City appeals from this interlocutory order.2 Discussion A. Standing As discussed in Morgan, __ N.C. App. at __, __ S.E.2d at __, we conclude the City cannot establish that it has standing to challenge the County s rezoning of the subject property. As the City s appeal in this case is controlled by our decision in Morgan, we dismiss this appeal as moot. See Roberts v. Madison County Realtors Ass n, Inc., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 sought (1996) on a ( A matter case is which, moot when when a rendered, determination cannot have is any practical effect on the existing controversy. ). B. Plaintiffs Petition for Writ of Certiorari During the pendency of this appeal, plaintiffs filed a Rule 60(b) motion with the trial court seeking relief from the trial court s order granting the County s motion to dismiss the City of Wilson and its claims. opinion stating that it The trial court entered an advisory would deny plaintiffs motion plaintiffs not appealed from the interlocutory order. 2 had See Bell Upon entry of the trial court s final order at issue in the companion case Morgan, __ N.C. App. at __, __ S.E.2d at __, the trial court stayed further proceedings in the underlying action until the issues in Morgan were resolved on appeal. -5v. Martin, 43 N.C. App. 134, 142, 258 S.E.2d 403, 409 (1979) (describing a procedure whereby a trial court may consider a Rule 60(b) motion filed while the appeal is pending for the limited purpose of indicating, by a proper entry in the record, how it would be inclined to rule on the motion were the appeal not pending ), rev d on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980). The trial court also entered an order awarding Nash County attorneys fees and expenses incurred in responding to plaintiffs motion. Plaintiffs ask this Court to review the trial court s disposition of the Rule 60(b) motion by a petition for writ of certiorari. We grant certiorari, and after careful review, abuse we opinion, discern but we no vacate of the discretion trial in court s the advisory order awarding attorneys fees and expenses to Nash County. The basis for plaintiffs Rule 60(b) motion was plaintiffs discovery of challenging new Nash evidence they allege County s rezoning of supports the their subject claims property. Plaintiffs evidence and the arguments proffered in support of the motion need not be discussed here as they are discussed in Morgan, __ N.C. App. at __, __ S.E.2d at __. In response to plaintiffs motion, the trial court concluded that because the 1 July 2011 order dismissing the City -6and its claims for lack of standing was an interlocutory order, plaintiffs Rule 60(b) motion had no basis in law. See Sink v. Easter, 288 N.C. 183, 196, 217 S.E.2d 532, 540 (1975) ( Rule 60(b) . . . has no application to interlocutory orders, or proceedings of the trial court. judgments, It only applies, by its express terms, to final judgments. ); N.C. Gen. Stat. § 1A1, Rule 60(b) (2011) ( [T]he court may relieve a party or his legal representative from a final judgment, order, or proceeding . . . . ). Accordingly, the trial court concluded that had plaintiffs not filed their appeal it would dismiss plaintiffs Rule 60(b) motion. We agree with the trial court s reasoning and discern no abuse of discretion conclusion in the by the advisory trial court opinion. See in reaching Kingston v. its Lyon Const., Inc., __ N.C. App. __, __, 701 S.E.2d 348, 353 (2010) ( Denial of a Rule 60(b) motion is reviewed under an abuse of discretion standard. ). However, as discussed in Morgan, __ N.C. App. at __, __ S.E.2d at __, we conclude the trial court was without jurisdiction to enter its awarding attorneys fees and expenses order must be vacated. 30 April 2012 order to Nash County. That An award of attorneys fees, if any, may be addressed only upon remand of this case to the trial court. -7Conclusion In summary, we dismiss the City s appeal from the trial court s 1 standing. opinion July 2011 order dismissing the City for lack of We remand the trial court s 30 April 2012 advisory for the trial court plaintiffs Rule 60(b) motion. to enter an order denying We vacate the trial court s 30 April 2012 order awarding attorneys fees and expenses to Nash County. DISMISSED as to the 1 July 2011 order. REMANDED as to the 30 April 2012 advisory opinion for entry of an order consistent with this decision. VACATED as to the 30 April 2012 order awarding attorneys fees and expenses. Judges STROUD and ERVIN concur. Report per Rule 30(e).

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